Basa vs Mercado

FACS: Hon. Hermogenes Reyes, Judge of Pampanga CFI, allowed and probated the last will and
testament of Ines Basa, decedent. The same judge also approved the account of the administrator of the
estate, declared him the only heir and closed the administration proceedings. Joaquin Basa, et al., filed a
motion to reopen the proceedings, alleging that the court lacked jurisdiction because there was failure
to comply with the requirements as to the publication of the notice of hearing. They contended that the
hearing took place only twenty-one days after the date of first publication instead of three full weeks.
Moreover, they questioned whether Ing Katipunan, the newspaper where the notice was published was
a newspaper of general circulation as contemplated by the law.

ISSUEs:

 Whether or not there was compliance with the publication requirement

 Whether or not Ing Katipunan is a newspaper of general circulation

HELD: The language used in section 630 of the Code of Civil Procedure does not mean that the notice,
referred to therein, should be published for three full weeks before the date set for the hearing of the
will. In other words, the first publication of the notice need not be made 21 days before the day
appointed for the hearing. The records show that Ing Katipunan is a newspaper of general circulation in
view of the fact that it is published for the dissemination of local news and general information; that it
has a bona fide subscription list of paying subscribers; that it is published at regular intervals and that
the trial court ordered the publication to be made in Ing Katipunan precisely because it was a
newspaper of general circulation in the Province of Pampanga.

Rodriguez vs Borja

Petitioners Angela, Maria, Abelardo and Antonio, surnamed Rodriguez, petition this Court for a writ of
certiorari and prohibition to the Court of First Instance of Bulacan, for its refusal to grant their motion to
dismiss its Special Proceeding No. 1331, which said Court is alleged to have taken cognizance of without
jurisdiction.

Facts: The records show that Fr. Celestino Rodriguez died on February 12, 1963 in the City of Manila;
that on March 4, 1963, Apolonia Pangilinan and Adelaida Jacalan delivered to the Clerk of Court of
Bulacan a purported last will and testament of Fr. Rodriguez; that on March 8, 1963, Maria Rodriguez
and Angela Rodriguez, through counsel filed a petition for leave of court to allow them to examine the
alleged will; that on March 11, 1963 before the Court could act on the petition, the same was
withdrawn; that on March 12, 1963, aforementioned petitioners filed before the Court of First Instance
of Rizal a petition for the settlement of the intestate estate of Fr. Rodriguez alleging, among other
things, that Fr. Rodriguez was a resident of Parañaque, Rizal, and died without leaving a will and praying
that Maria Rodriguez be appointed as Special Administratrix of the estate; and that on March 12, 1963
Apolonia Pangilinan and Adelaida Jacalan filed a petition in this Court for the probation of the will
delivered by them on March 4, 1963. It was stipulated by the parties that Fr. Rodriguez was born in
Parañaque, Rizal; that he was Parish priest of the Catholic Church of Hagonoy, Bulacan, from the year
1930 up to the time of his death in 1963; that he was buried in Parañaque, and that he left real
properties in Rizal, Cavite, Quezon City and Bulacan.

The movants contend that since the intestate proceedings in the Court of First Instance of Rizal was filed
at 8:00 A.M. on March 12, 1963 while the petition for probate was filed in the Court of First Instance of
Bulacan at 11:00 A.M. on the same date, the latter Court has no jurisdiction to entertain the petition for
probate, citing as authority in support thereof the case of Ongsingco Vda. de Borja vs. Tan and De Borja,
G.R. No. 7792, July 27, 1955.

The petitioners Pangilinan and Jacalan, on the other hand, take the stand that the Court of First Instance
of Bulacan acquired jurisdiction over the case upon delivery by them of the will to the Clerk of Court on
March 4, 1963, and that the case in this Court therefore has precedence over the case filed in Rizal on
March 12, 1963.

The Court of First Instance, as previously stated denied the motion to dismiss on the ground that a
difference of a few hours did not entitle one proceeding to preference over the other; that, as early as
March 7, movants were aware of the existence of the purported will of Father Rodriguez, deposited in
the Court of Bulacan, since they filed a petition to examine the same, and that movants clearly filed the
intestate proceedings in Rizal "for no other purpose than to prevent this Court (of Bulacan) from
exercising jurisdiction over the probate proceedings".

Issue: Which court have jurisidiction over the special proceeding?

Discussion: The jurisdiction of the Court of First Instance of Bulacan became vested upon the delivery
thereto of the will of the late Father Rodriguez on March 4, 1963, even if no petition for its allowance
was filed until later, because upon the will being deposited the court could, motu proprio, have taken
steps to fix the time and place for proving the will, and issued the corresponding notices conformably to
what is prescribed by section 3, Rule 76, of the Revised Rules of Court (Section 3, Rule 77, of the old
Rules):

SEC. 3. Court to appoint time for proving will. Notice thereof to be published. — When a will is delivered
to, or a petition for the allowance of a will is filed in, the Court having jurisdiction, such Court shall fix a
time and place for proving the will when all concerned may appear to contest the allowance thereof,
and shall cause notice of such time and place to be published three (3) weeks successively, previous to
the time appointed, in a newspaper of general circulation in the province.

But no newspaper publication shall be made where the petition for probate has been filed by the
testator himself.

The use of the disjunctive in the words "when a will is delivered to OR a petition for the allowance of a
will is filed" plainly indicates that the court may act upon the mere deposit therein of a decedent's
testament, even if no petition for its allowance is as yet filed. Where the petition for probate is made
after the deposit of the will, the petition is deemed to relate back to the time when the will was
delivered. Since the testament of Fr. Rodriguez was submitted and delivered to the Court of Bulacan on
March 4, while petitioners initiated intestate proceedings in the Court of First Instance of Rizal only on
March 12, eight days later, the precedence and exclusive jurisdiction of the Bulacan court is
incontestable.
Acain vs Intermediate Appellate Court

Facts: Constantino Acain filed on the RTC, a petition for the probate of the will of the late Nemesio Acain
and for the issuance to the same petitioner of letters testamentary, on the premise that Nemesio Acain
died leaving a will in which petitioner and his brothers Antonio, Flores and Jose and his sisters Anita,
Concepcion, Quirina and Laura were instituted as heirs. The will contained provisions on burial rites,
payment of debts, and the appointment of a certain Atty. Ignacio G. Villagonzalo as the executor of the
testament. On the disposition of the testator's property, the will provided: THIRD: All my shares that I
may receive from our properties. house, lands and money which I earned jointly with my wife Rosa
Diongson shall all be given by me to my brother SEGUNDO ACAIN Filipino, widower, of legal age and
presently residing at 357-C Sanciangko Street, Cebu City. In case my brother Segundo Acain pre-
deceased me, all the money properties, lands, houses there in Bantayan and here in Cebu City which
constitute my share shall be given to me to his children, namely: Anita, Constantino, Concepcion,
Quirina, laura, Flores, Antonio and Jose, all surnamed Acain. Obviously, Segundo pre-deceased Nemesio.
Thus it is the children of Segundo who are claiming to be heirs, with Constantino as the petitioner. The
oppositors filed a motion to dismiss on the following grounds for the petitioner has no legal capacity to
institute these proceedings; (2) he is merely a universal heir and (3) the widow and the adopted
daughter have been pretirited.

Issue: Whether or not private respondents have been preterated

Ruling: Preterition consists in the omission in the testator's will of the forced heirs or anyone of them
either because they are not mentioned therein, or, though mentioned, they are neither instituted as
heirs nor are expressly disinherited. Insofar as the widow is concerned, Article 854 of the Civil Code may
not apply as she does not ascend or descend from the testator, although she is a compulsory heir.
Stated otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even if she is
omitted from the inheritance, for she is not in the direct line. (Art. 854, Civil code) however, the same
thing cannot be said of the other respondent Virginia A. Fernandez, whose legal adoption by the testator
has not been questioned by petitioner. Under Article 39 of P.D. No. 603, known as the Child and Youth
Welfare Code, adoption gives to the adopted person the same rights and duties as if he were a
legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It cannot be
denied that she has totally omitted and preterited in the will of the testator and that both adopted child
and the widow were deprived of at least their legitime. Neither can it be denied that they were not
expressly disinherited. Hence, this is a clear case of preterition of the legally adopted child.

Adjudication: PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit

Garcia vs Vasquez